James Gill: Agencies bicker; you pay

It is first thing Monday morning, and the lawyers in a Baton Rouge courtroom are going back and forth on their privileges and declinatory exceptions, their no causes of action and suchlike folderol, and none of it is worth putting in the notebook.

But I am not bored. I amuse myself figuring out how much this hearing is costing the taxpayer. It has to be many thousands, for the plaintiff and defendant are both state agencies and both have hired phalanxes of fancy mouthpieces to find arcane debating points.

For good measure, Attorney General Buddy Caldwell has sent an assistant to assure state District Judge Todd Hernandez, when the principals pause for breath, that the statute at the heart of the litigation is constitutional.

Whatever the bill for this dismal morning, it will be a drop in the ocean. The feud between Insurance Commissioner Jim Donelon and Legislative Auditor Steve Theriot has already consumed more than a year.

Actually, I do not amuse myself for long, because I remember that I am a taxpayer too and the blood begins to boil.

At the end of proceedings, Hernandez takes everything under advisement, but I am ready to rule immediately, albeit not on such questions as, say, "lack of subject matter jurisdiction."

But common sense is all you need to see that the underlying dispute is a spurious one, and that Donelon had no rational grounds for suing Theriot in the first place.

Hernandez would do us a big favor by dismissing Donelon's suit and ordering him to give Theriot all the documents he demands for the audits he is statutorily required to conduct.

Donelon filed his suit last year after Theriot's audit for 2007 found that the Insurance Department was "not in compliance" with state law. Since that law grants the legislative auditor unfettered access to all records, and Donelon had declined to produce certain e-mails, no other conclusion was feasible.

The law also requires that the state quit funding any agency not in compliance, but Hernandez allowed the department to keep its money pending resolution of Donelon's lawsuit.

According to his lawsuit, Donelon is constitutionally obliged to withhold documents containing privileged or confidential information. The e-mails have no relevance to an audit anyway, he claims.

It is generally thought unwise to allow the subject of an audit to decide what documents are relevant. That would obviously ensure that nothing untoward were ever discovered. Thus the law says the call is for Theriot to make, and his demands for records "confidential or otherwise" cannot be denied.

But, according to Donelon, that law conflicts with his higher obligation to honor the privacy rights of his employees. Those employees are evidently not concerned that Theriot might gain access to whatever Donelon is so keen to hide. Donelon notified them all and invited them to intervene in the suit. Nobody bothered to do so.

The theory that the state law impinges on constitutional rights is in any case bogus. The law enjoins Theriot, when he receives confidential information, to keep it confidential. At no stage in Monday's hearing did Donelon's attorney, David Rubin, claim that Theriot would be unable or unwilling to shield such material from public scrutiny.

In any case, Theriot would have no motive to release e-mails touching on, say, office dalliances. His job is to find out where our money went.

Toward the end of Monday's hearing, Rubin claimed that, out of 13.5 million e-mails stored at the Insurance Department, Donelon was only really bothered about "two or three."

If that is so, said Theriot's attorney Wade Shows, give us everything else we want and let the judge review the other two or three so that he can decide whether we should get them.

That might be a quick, sensible and relatively inexpensive way to resolve the whole dispute. So you know it isn't going to happen.

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James Gill is a staff writer. He can be reached at 504.826.3318 or at jgill@timespicayune.com.